The California Rules of Court allow superior courts to use a tentative ruling procedure in law and motion matters. (See CRC 3.1308.) Many attorneys assume that they must contest an adverse tentative ruling to preserve their objections for appeal. While there may be good reasons to contest, it is not necessarily mandatory.
It is not “invited error” to submit on a tentative ruling. (Mundy v. Lenc (2012) 203 Cal.App.4th 1401 (“Mundy”); see Jon B. Eisenberg et al., California Practice Guide: Civil Appeals and Writs ¶ 8:248.12 (“Rutter”).) The doctrine of invited error is based on a principle of estoppel; it “prevents a party from misleading the trial court and then profiting therefrom in the appellate court.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) But so long as a litigant asserts an issue in the trial court and does not actively invite error, the issue is preserved for appeal. (Mundy, supra, 203 Cal.App.4th at pp. 1405-1406; Rutter, supra, ¶ 8:248.12.)
In Mundy, the plaintiff sued for violations of the Americans with Disabilities Act, and the defendant filed a cross-complaint. (203 Cal.App.4th 1401.) The plaintiff moved to strike the cross-complaint under the anti-SLAPP law, Code Civ. Proc. § 425.16. (Ibid.) The trial court issued a tentative ruling denying the anti-SLAPP motion and awarding Lenc over $20,000 in attorney fees, and the plaintiff did not contest it. (See id. at pp. 1405-1406.) The tentative ruling then became the trial court’s order pursuant to the local rules of court. (See ibid.) The plaintiff appealed.
On appeal, Lenc contended that Mundy was barred from challenging the trial court’s orders because he submitted on the tentative ruling. (Id. at p. 1406.) The Court of Appeal did not agree. (Ibid.) By filing his anti-SLAPP motion and opposing Lenc’s motion for attorney fees, Mundy made clear that his position “was that he should prevail on all issues before the trial court,” and he gave the trial court an opportunity to rule on the points he sought to raise on appeal. (Ibid.) The court explained: “He did not mislead the trial court. Submission on a tentative ruling is neutral; it conveys neither agreement nor disagreement with the analysis.” (Ibid.)
While Mundy has not yet been widely explored in the appellate courts, it is authority on the subject and binding on lower courts. (See Auto Equity Sales, Inc. v. Superior Court of Santa Clara Cty. (Hesenflow) (1962) 57 Cal.2d 450, 455.) Its rule regarding tentative rulings has been picked up by the Rutter Guide and several unpublished opinions. (See, e.g., Rutter, supra, ¶ 8:248.12; In re David G., No. B270578 (Cal. Ct. App. Dec. 21, 2016) 2016 WL 7387225, at *4 n.4.)
Of course, it is advisable to pursue all arguments vigorously in the trial court—especially if the ruling is likely to become an appealable issue. A law and motion hearing can be a great opportunity to persuade and to make a clean record. But when deciding whether to contest or not, don’t be swayed by the notion that an issue is waived simply because the client elected to submit on a tentative. That is just not the case.
Josephine is an Appellate Specialist certified by the California State Bar, and Senior Counsel with Hanson Bridgett's Appellate Practice Group. She represents companies, governmental organizations, nonprofits, and other litigants in all manner of civil appeals and writs, and advises clients and trial litigators on strategy and dispositive legal issues.
